Keith Davidson

This Practice Note highlights environmental, energy performance certificate (EPC), minimum energy efficiency requirements (MEES), planning and health and safety issues that solicitors should look out for when reviewing Commercial Property Standard Enquiries (CPSEs) and provides additional enquiries that can be raised. It highlights the key CPSEs which raise environmental and health and safety issues, such as adverse rights, environmental insurance, access to neighbouring land, physical condition, utilities, asbestos, Green Deal, environmental reports, environmental permitting, Community Infrastructure Levy (CIL) etc.

This Practice Note highlights key issues for a seller in a property transaction (sale and purchase). This includes looking at environmental liability transfer provisions to consider when acting for a seller to achieve as clean a break as possible from environmental liabilities associated with the property. Some of these liabilities could be connected with contamination, asbestos, water pollution, environmental damage, landfills, fly-tipped waste, energy management and reporting, energy performance certificates (EPCs) and minimum energy efficiency standards (MEES). Transfer provisions include sold with information clauses, payments for remediation, agreements on liability, indemnities and environmental insurance.

This Practice Note summarises the liability position for buyers, sellers, landlords and tenants for land contamination and also provides the options available to minimise or transfer liabilities for contaminated land. The Law Society practice note on contaminated land recommends that solicitors consider contaminated land issues in every transaction involving property. The Practice Note also refers to perfluoroalkyl and polyfluoroalkyl substances (PFAS) and land contamination.

This Precedent places the risk of environmental liability arising from existing contamination, new contamination and offsite or onsite migration of contamination onto the tenant. It was produced in partnership with Keith Davidson of Irwin Mitchell. The Precedent includes an agreement on liabilities under the contaminated land regime and the option of an indemnity from the tenant.

This Precedent can be used in leases when the landlord is to be responsible for existing contamination and the tenant is to take on responsibility for new contamination and mobilising existing contamination. This is to avoid the situation where a lease is silent on environmental issues and the landlord could pass clean-up costs for contamination, existing before the commencement of the lease, under lease covenants such as the compliance with statutory requirements covenant, repair covenant or outgoings covenant. It was produced in partnership with Keith Davidson at Irwin Mitchell.

This Precedent provides a clause to be used in sale contracts where the seller retains environmental liability for contamination. In most sale contracts liability for pre-existing contamination is passed to the buyer from the completion date under the sold with information exclusion test, set out in the statutory guidance issued under the Environmental Protection Act 1990 (EPA 1990), Pt IIA. This alternative precedent can be used when the seller retains environmental liability for pre-existing contamination, for example when the buyer is in a strong negotiating position. In sale and leaseback situations the provisions can be widened so that the seller/tenant is responsible for pre-existing and new contamination. It was produced in partnership with Keith Davidson at Irwin Mitchell.

This Checklist sets out the key environmental issues that solicitors acting for a tenant should consider when taking a new lease of commercial property. This includes looking at environmental reports, responsibility for contaminated land liabilities, asbestos, septic tanks, underground storage tanks and minimum energy efficiency standards.

This checklist sets out the key environmental issues that solicitors acting for a seller may need to consider before a sale of property.

This Checklist sets out the environmental issues to be dealt with after the completion of a private company asset purchase transaction.

This checklist sets out the environmental issues to be dealt with after the completion of a private company share purchase transaction.